Presumption in favor of relocating custodial parent is no longer applicable in Georgia

Law Reporter, May 2004

Bodne v. Bodne, 588 S.E.2d 728 (Ga. 2003).

The Georgia Supreme Court held there will no longer be a presumption in favor of allowing a custodial parent to relocate and, instead, courts must look at each case to determine what is in the child's best interest.

Here, divorced parents shared equal custody of their children. The father subsequently filed a petition to modify the mother's visitation so that he could move out-of-state with the children. The mother counter-sued for custody. The trial court awarded custody to the mother. An appellate court reversed, finding that Georgia jurisprudence has long held that relocation is not enough to create a substantial change in circumstances.

Reversing, the state high court held that the best interest of the child is the primary concern, and there is no longer a prima facie presumption that relocation is in die child's best interest. Relocation is a material change in circumstances and as such, custody issues can be revisited. The determination of the child's best interest, the court said, must be made on a case-by-case basis, without a presumption either way. Thus, contrary to past holdings, a party is not required to demonstrate the move would put the child at risk, but just that it would not be in the child's best interest.

The court found that in the instant case, the trial court had carefully considered several factors and decided the best interests of the children would be served by placing them in their mother's custody. There was evidence the relocation and subsequent decrease in contact with their mother would cause irreparable harm to the children.

Accordingly, the court overruled all prior cases that applied a prima facie right to relocate.

Mother's Counsel

James M. Allison Jr., Douglasville, Ga.

Comment: In Davis v. Davis, 588 S.E.2d 102 (S.C. 2003), the South Carolina Supreme Court held that one parent's intention to move if granted custody can be a factor in the court's decision to award custody to the other parent. Douglas Kosta Kotti, Columbia, Ga.; and Timothy S. Mirshak, Augusta, Ga. represented the other parent in Davis.